30.22. 22. That the Jurisdictions were established before the End of the
Second Race.
It has been pretended that the vassals usurped the
jurisdiction in their seigniories, during the confusion of the second
race. Those who choose rather to form a general proposition than to
examine it found it easier to say that the vassals did not possess than
to discover how they came to possess. But the jurisdictions do not owe
their origin to usurpations; they are derived from the primitive
establishment, and not from its corruption.
"He who kills a freeman," says the law of the Bavarians, "shall pay
a composition to his relatives if he has any; if not, he shall pay it to
the duke, or to the person under whose protection he had put himself in
his lifetime."
[177]
it is well known what it was to put oneself under
the protection of another for a benefice.
"He who had been robbed of his bondman," says the law of the
Alemans, "shall have recourse to the prince to whom the robber is
subject; to the end that he may obtain a composition."
[178]
"If a centenarius," says the decree of Childebert, "finds a robber
in another hundred than his own, or in the limits of our faithful
vassals, and does not drive him out, he shall be answerable for the
robber, or purge himself by oath."
[179]
There was therefore a difference
between the district of the centenarii and that of the vassals.
This decree of Childebert
[180]
explains the constitution of
Clotharius of the same year, which being given for the same occasion and
on the same matter differs only in the terms; the constitution calling
in truste what by the decree is styled in terminis fidelium nostrorum.
Messieurs Bignon and Ducange, who pretend that in truste signified
another king's demesne, are mistaken in their conjecture.
[181]
Pepin, King of Italy, in a constitution that had been made as well
for the Franks as for the Lombards,
[182]
after imposing penalties on the
counts and other royal officers for prevarications or delays in the
administration of justice, ordains that if it happens that a Frank or a
Lombard, possessed of a fief, is unwilling to administer justice, the
judge to whose district he belongs shall suspend the exercise of his
fief, and in the meantime, either the judge or his commissary shall
administer justice.
[183]
It appears by a Capitulary of Charlemagne,
[184]
that the kings did
not levy the freda in all places. Another capitulary of the same prince
shows the feudal laws
[185]
and feudal court to have been already
established. Another of Louis the Debonnaire ordains that when a person
possessed of a fief does not administer justice,
[186]
or binders it from
being administered, the king's commissaries shall live in his house at
discretion, till justice be administered. I shall likewise quote two
capitularies of Charles the Bald; one of the year 861,
[187]
where we
find the particular jurisdictions established, with judges and
subordinate officers; and the other of the year 864,
[188]
where he makes
a distinction between his own seigniories and those of private persons.
We have not the original grants of the fiefs, because they were
established by the partition which is known to have been made among the
conquerors. It cannot, therefore, be proved by original contracts that
the jurisdictions were at first annexed to the fiefs: but if in the
formularies of the confirmations, or of the translations of those fiefs
in perpetuity, we find, as already has been observed, that the
jurisdiction was there established, this judiciary right must certainly
have been inherent in the fief and one of its chief privileges.
We have a far greater number of records that establish the
patrimonial jurisdiction of the clergy in their districts than there are
to prove that of the benefices or fiefs of the feudal lords; for which
two reasons may be assigned. The first, that most of the records now
extant were preserved or collected by the monks, for the use of their
monasteries. The second, that the patrimony of the several churches
having been formed by particular grants, and by a kind of derogation
from the order established, they were obliged to have charters granted
to them; whereas the concessions made to the feudal lords being
consequences of the political order, they had no occasion to demand, and
much less to preserve, a particular charter. Nay the kings were
oftentimes satisfied with making a simple delivery with the sceptre, as
appears from the Life of St. Maur.
But the third formulary of Marculfus sufficiently proves that the
privileges of immunity, and consequently that of jurisdiction, were
common to the clergy and the laity, since it is made for both.
[189]
The same may be said of the constitution of Clotharius II.
[190]
Footnotes
[177]
Tit. 3, cap. xiii. Lindembrock's edition.
[179]
In the year 595, arts. 11 and 12, edition of the Capitularies
by Baluzius, p. 19.
[181]
See Du Cange, "Glossary," on the word trustis.
[182]
Inserted in the "Law of the Lombards," book ii. tit. 52, section 14. It is
the Capitulary of the year 793, in Baluzius, p. 544, art. 10.
[183]
See also the same "Law of the Lombards," book ii, tit. 52, section 2,
which relates to the Capitulary of Charlemagne of the year 779, art. 21.
[184]
The third of the year 812, art. 10.
[185]
The second of the year 813, arts. 14, 20, Baluzius' edition, p.
509.
[186]
Capitulare quintum anni 819 art. 23, Baluzius' edition, p. 617.
[187]
Edictum in Carisiaco in Baluzius, tome ii, p. 152.
[188]
Edictum Pistense, art. 18, Baluzius' edition, tome ii, p. 181.
[190]
I have already quoted it in the preceding chapter, "Episcopi vel
patentes."
